EXHIBIT 3.3
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GOTHIC ENERGY CORPORATION
(A DELAWARE CORPORATION)
INTO
GOTHIC ENERGY NEWCO, INC.
(AN OKLAHOMA CORPORATION)
(Under Section 1083 of the General Corporation Law of the State of Oklahoma)
Gothic Energy Corporation, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), does hereby certify:
FIRST: That it was organized pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "DGCL") under the name TNC
Subsidiary Corp., on June 15, 1994 and on April 18, 1995 filed a Certificate of
Amendment changing its name to Gothic Energy Corporation.
SECOND: That it owns all of the outstanding shares of stock of Gothic
Energy Newco, Inc., a corporation organized pursuant to the provisions of the
Oklahoma General Corporation Law on October 11, 1996 ("Newco").
THIRD: That the Board of Directors of the Company, by unanimous written
consent dated October 10, 1996, determined to merge the Company into Newco (the
"Merger"), and did adopt the following resolutions:
RESOLVED, that the Board of Directors deems it advisable and in the best
interests of the Company that the Company and its wholly owned subsidiary,
Gothic Energy Newco, Inc., an Oklahoma corporation ("Newco"), be merged
upon the terms and conditions set forth in (a) the Agreement and Plan of
Merger between the Company and Newco (the "Merger Agreement"), (b) the
Certificate of Ownership and Merger under Section 1083 of the General
Corporation Law of the State of Oklahoma merging the Company into Newco
(the "Oklahoma Certificate of Merger") and (c) the Certificate of Ownership
and Merger under Section 253 of the
General Corporation Law of the State of Delaware merging the Company into
Newco (the "Delaware Certificate of Merger"), each of which is filed with
and made a part of these resolutions (the "Merger Documents"), pursuant to
which Newco shall survive the merger (the "Merger"); and be it further
RESOLVED: That the terms and conditions of the Merger are as follows:
(a) At the effective time of the merger (the "Effective Time"), the
Company shall be merged into Newco and, thereupon, Newco shall possess any
and all purposes and powers of the Company; and all leases, licenses,
property, rights, privileges and powers of whatever nature and description
of the Company shall be transferred to, vested in and devolved upon Newco,
without further act or deed, subject to all of the debts and obligations of
the Company;
(b) At the Effective Time, the corporate name of Newco shall be
changed to Gothic Energy Corporation;
(c) At the Effective Time, by virtue of the Merger and without any
action on the part of the Company, Newco or any holder of any stock of
either of them:
(i) Each share of Common Stock, $0.01 par value per share, of
the Company ("Company Common Shares") issued and outstanding immediately
prior to the Effective Time shall be converted into the right to receive
one (1) validly issued, fully paid and nonassessable share of Common Stock,
$0.001 par value per share, of Newco ("Newco Common Shares"). Each
certificate representing Company Common Shares shall thereafter represent
the right to receive Newco Common Shares. All Company Common Shares shall
cease to be outstanding, shall be canceled and retired and shall cease to
exist;
(ii) Each Company Common Share issued and held in the Company's
treasury shall cease to be outstanding, shall be canceled and retired
without payment of any consideration therefor and shall cease to exist;
(iii) Each share of 7-1/2% Cumulative Convertible Preferred
Stock, $0.05 par value per share, of the Company ("Company
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Preferred Shares") issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive one (1) validly
issued, fully paid and non-assessable share of 7-1/2% Cumulative
Convertible Preferred Stock, $0.05 par value per share, of Newco ("Newco
Preferred Shares'). Each certificate representing Company Preferred Shares
shall thereafter represent the right to receive Newco Preferred Shares. All
Company Preferred Shares shall cease to be outstanding, shall be cancelled
and retired and shall cease to exist;
(iv) Each Newco Common Share issued and outstanding immediately
prior to the Effective Time shall cease to be outstanding, shall be
canceled and retired without payment of any consideration therefor and
shall cease to exist;
(v) Each option, warrant, conversion right, or other right to
purchase or otherwise acquire Company Common Shares pursuant to stock
option, warrant or other stock-based plans or conversion right of the
Company granted, issued or outstanding immediately prior to the Effective
Time (A) shall be converted into and become a right to purchase or
otherwise acquire the same number of Newco Common Shares at the same price
per share and upon the same terms and subject to the same conditions as
applicable to such options, warrants, conversion rights, or other rights
immediately prior to the Effective Time and (B) shall be assumed and
governed under all option plans or agreements binding upon or in force
against the Company immediately prior to the Effective Time;
(d) On or after the Effective Time, all of the outstanding
certificates which prior to that time represented Company Common Shares or
Company Preferred Shares shall be deemed for all purposes to evidence
ownership of and to represent Newco Common Shares or Newco Preferred Shares
into which such shares have been converted as hereinabove provided and
shall be so registered on the books and records of Newco or its transfer
agents. Until any such certificate shall have been surrendered for
transfer or otherwise accounted for to Newco or its transfer agent, the
registered owner of any such outstanding certificate shall have and be
entitled to exercise any voting and other rights with respect to, and to
receive any dividend or other distribution on, the Newco Common Shares or
Newco Preferred Shares into which the Company Common Shares or Company
Preferred Shares represented by
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such certificate have been converted. After the Effective Time, whenever
certificates which formerly represented Company Common Shares or Company
Preferred Shares are presented for exchange or registration of transfer,
Newco will cause to be issued in respect thereof certificates representing
an equal number of Newco Common Shares or Newco Preferred Shares; and be it
further
RESOLVED: That, in the event the Merger Agreement is not terminated by the
Board of Directors, the proper officers of the Company are hereby
authorized and directed to execute the Merger Documents, to take all action
necessary for the proper filing of the Certificate of Ownership and Merger
with the Secretary of State of the State of Oklahoma and the Certificate of
Ownership and Merger with the Secretary of State of the State of Delaware,
and to take such other action and execute such other documents as may be
necessary or appropriate to the implementation and consummation of the
Merger.
FOURTH: That the Merger has been adopted, approved, certified, executed
and acknowledged by the Company in accordance with the laws of the State of
Delaware.
FIFTH: This Certificate of Ownership and Merger shall become effective
upon acceptance for filing by the Secretary of State.
SIXTH: The undersigned President of the Company acknowledges this
Certificate of Ownership and Merger to be the corporate act of the Company, and
further, as to all matters or facts required to be verified under oath, the
President of the Company acknowledges that, to the best of his knowledge,
information and belief, these matters and facts relating to the Company are true
in all material respects and that this statement is made under the penalties for
perjury.
IN WITNESS WHEREOF, this Certificate of Ownership and Merger has been duly
executed by the President of the Company and attested to by its Secretary this
__________ day of October 1996.
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Attest: GOTHIC ENERGY CORPORATION
By:
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Linda Esley, Secretary Michael Paulk, President
(corporate seal)
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